Major California case expands ADA protections for employees

The federal courts have been cutting back on disability rights under the ADA, but an influential California Court of Appeals Judge has written a major decision interpreting California's disability law quite broadly. The case involves the employer's duty to reasonably accommodate disabilities.

In the case, an airline pilot for United Air Lines was diagnosed with AIDS. The FAA refuses medical certification to pilots with AIDS, therefore he was grounded. He was placed on disability retirement rather than offered an alternative position.

The court noted that under the ADA employers should offer reassignments to employees unable to perform the essential functions of their jobs. The reassignment should be to an existing vacant position of the same level. The court adopts this standard for California's disability law, too.

However, unlike under the ADA, where courts are holding that employees have a duty to request accommodation, the court here held that once the employer was informed of the fact of a disability, it had a duty to initiate a discussion with the employee about other options, including reassignment. The fact that the employee did not request an accommodation or reassignment was irrelevant.

This case probably will be appealed to the California Supreme Court. Stay tuned.

United argued that "The FEHA does not impose liability upon an employer for failure to provide a specific accommodation where, as here, the employee failed to request that accommodation," and that "due to their physical conditions after their grounding, plaintiffs cannot identify a single vacant position they were capable of performing."

Plaintiffs also contended that in discovery, defendants admitted that from June 1994 to December 1995, United had 23 pilot instructor positions open and hired 23 individuals without offering any of the positions to them.

As to the flight instructor positions, United also maintained that these positions entailed flight responsibilities and required the instructor to have FAA medical certification, which Prilliman did not have.

In their briefs on appeal, appellants do not challenge the implied finding by the trial court that their grounding by United did not violate the provisions of FEHA; rather, appellants' principal contention is that a triable issue of fact exists on the issue of whether United met the requirement of the FEHA to reasonably accommodate their conditions. Appellants' position is that their "forced retirement" was not a reasonable accommodation, and United had an obligation to take affirmative steps to help them find other positions with United. Respondents' position is that because appellants sought and received state and federal disability benefits on the representation that they were totally disabled, they are estopped from taking a contrary position in this lawsuit, i.e., that they were physically able to work in some other position with United. In addition, respondents assert that, under the facts in this case, the offers of medical disability did constitute reasonable accommodation under the FEHA, and in the absence of any requests by appellants for an alternative accommodation, such as nonflight positions, United had no legal obligation to "predict or assume from their silence that they desired other, nonflight jobs." Our first task, then, is to determine the nature and scope of the reasonable accommodation requirement of the FEHA.

The Supreme Court of Washington, in interpreting a statute and regulation similar to California Government Code section 12940, subdivision (k),[FOOTNOTE 3] held that "The duty of an employer reasonably to accommodate an employee's handicap does not arise until the employer is 'aware of respondent's disability and physical limitations.' [Citations.] The employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer's burden to take 'positive steps' to accommodate the employee's limitations. . . . [para.] . . . The employee, of course, retains a duty to cooperate with the employer's efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions." (Goodman v. Boeing Co. (Wash. 1995) 899 P.2d 1265, 1269-1270.)

In light of the foregoing, and consistent with the interpretation of the concept of reasonable accommodation under the FEHA as set out in section 7293.9 of title 2 of the California Code of Regulations, we conclude that an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees. Such a duty is also consistent with the provisions of Government Code section 12940, subdivision (a), which, with specified exceptions, provides in pertinent part that it is an unlawful employment practice for an employer, because of the physical disability or medical condition of any person, "to discriminate against the person in compensation or in terms, conditions or privileges of employment."[FOOTNOTE 4]

The issue of whether summary judgment was properly granted as to Prilliman is more complex because of the fact that there is evidence in our record that as late as September 1995, or over a year after his grounding, Prilliman was functioning well within normal limits as to intellectual ability and motor skills. The inference arises that Prilliman was capable of performing some type of non-flight position, and may have qualified for an alternative position with United. However, our record also indicates that Prilliman was receiving social security benefits for disability. Respondents contend that the assertion of disability for the purpose of obtaining social security benefits constitutes a judicial estoppel and precludes Prilliman from arguing in his FEHA case that he was capable of performing an alternative position with United.

We also find without merit respondents' suggestion that the disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such accommodation.

PRILLIMAN v. UNITED AIR LINES, INC.,
___Cal.App.4th ___, 97 C.D.O.S. 2173 (CA 2, March 25, 1997)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.